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Curbing Copyblight

This Article identifies and analyzes the growing problem of “copyblight” — the widespread use of overreaching claims by putative copyright holders to ownership of public domain works, and, more broadly, to exclusive rights which they do not hold in copyrighted works.

Despite the fact that copyblight circumscribes political and social discourse, stifles creativity, and constricts the dissemination of information, present law provides few, if any, disincentives against the practice. For example, the Copyright Clearance Center and major publishing houses earn millions of dollars in ill-gotten license payments from students and academic institutions by glibly tossing aside the “limited times” requirement and claiming rights to public domain works. Talk show hosts, law firms, and major record labels overwhelm legitimate fair use rights when they suppress criticism of hate speech, stifle public commentary on legal positions and tactics, and, most infamously, tell a mother that she cannot place on a YouTube a short video of her baby dancing to unauthorized music. Meanwhile, college bookstores, big box retailers, and Major League Baseball attempt to circumvent copyright’s subject matter limitations when they claim protection in book lists, product pricing, and factual statistical data for playing fantasy sports. In all, countless organizations and entities flout provisions of federal law that protect the public interest by circumscribing the scope of copyright protection.

Building on the groundbreaking work of Paul Heald and Jason Mazzone, "Curbing Copyblight" considers three proposals to temper the problems of overreach in order to restore a needed balance in our copyright system: (1) strengthening section 512(f) of the Digital Millenium Copyright Act to provide a more viable claim against those who make false representations to force the removal of allegedly infringing content online; (2) forcing the adoption of an even-handed approach in the assessment of fees in copyright casesmaking grants of attorneys’ fees mandatory under section 505 — something that many trial courts have failed to do despite the explicit exhortations of the Supreme Court and the significant policy interest at stake; and (3) resurrecting a qui tam civil cause of action for false ‘markings’ under the Copyright Act in order to disincentive the (presently ubiquitous) use of fraudulent legal language that erodes and chills protected user activities. As a society, we (rightfully) offer meaningful remedies for the infringement of legitimate owner rights. It only makes sense to begin offering meaningful remedies for the infringement of legitimate user rights.